67 U.S. 461 (1863), Curtis' Adm'x v. Fiedler

Citation:67 U.S. 461, 17 L.Ed. 273
Case Date:January 12, 1863
Court:United States Supreme Court

Page 461

67 U.S. 461 (1863)

17 L.Ed. 273




United States Supreme Court.

January 12, 1863


Error to the Circuit Court of United States for the Southern District of New York.

Ernest Fiedler, a merchant of New York, in September, 1842, imported into the port of New York, from St. Petersburgh, Russia, in the ship 'Nicholas Savin,' a quantity of unmanufactured hemp. He also imported at the same time, by the same vessel, a quantity of iron in bars.

The Tariff Act of August 30, 1842, which was in operation at the time of the importation, contained the following provision in respect to the duty to be levied on hemp: 'On manufactured hemp forth dollars per ton; on manilla, sunn, and other hemps of India, on jute sisal, grass, coir, and other vegetable substances, not enumerated, used for cordage, twenty-five dollars per ton.' Tariff Act of 1842, sec. 3, sub. 3.

Edward Curtis, at that time Collector of the Port of New York, treated this hemp as unmanufactured hemp and charged upon it a duty of $2,575.38, being at the rate of $40 per ton. The duties thus charged upon the iron amounted to the further sum of $848.56. The importer protested against the payment of the duties thus charged on the entire importation. The protest was in writing upon the margin of the entry, which embraced both the hemp and the iron, and was as follows: 'I hereby protest against the payment of the duty charged in this entry on account that there exists no law authorizing the exaction of said duty. Sept. 1, 1842.' No other protest against or objection to the payment of the duties was made by or on behalf of the plaintiff. The duties were paid to the collector, September 6, 1842, and by him paid into the Treasury of the United States.

The plaintiff afterwards, in November, 1847, brought the action of assumpsit to recover the difference between the amount of duties charged and paid on the hemp specified in the entry at the rate of $40 per ton and the amount calculated at the rate of $25 per ton, the difference claimed being $965.77. The defendant pleaded non assumpsit.

At the trial, before Mr. Justice Nelson and a jury, the above facts were proved, and the plaintiff claimed that under articles 6 and 11, of the Treaty between the United States and Russia, of

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December 6th and 18th, 1832, the exaction of any duty on the hemp in question beyond $25 per ton was unauthorized and illegal. The Articles of the Treaty thus relied on, are as follows: 'Article 6. No higher or other duties shall be imposed on the importation into the United States of any article, the produce or manufacture of Russia; and no higher or other duties shall be imposed on the importation into the Empire of Russia, of any article the produce or manufacture of the United States, than are, or shall be payable on the like article, being the produce or manufacture of any other foreign country. Nor shall any prohibition be imposed on the importation or exportation of any article, the produce or manufacture of the United States or of Russia, to or from the ports of the United States, or to or from the ports of the Russian Empire, which shall not equally extend to all other nations.'

'Article 11. If either party shall, hereafter, grant to any other nation, any particular favor in navigation or commerce, it shall immediately become common to the other party, freely, where it is freely granted to such other nation, or on yielding the same compensation, when the grant is conditional.'

The plaintiff grounded his right to recover on this: that the Treaty with Russia fixed the duties on hemp imported from that country at the rates imposed on the same articles from any other country, and inasmuch as the tariff of 1842 imposed only $25 per ton on India hemp, no higher duty could be legally charged on Russian hemp.

The plaintiff called witnesses to prove that Russian and Manilla hemps are known in trade and commerce as 'hemp,' and serve substantially the same purposes, being all used in the manufacture of cordage, &c. On the part of defendant it was proved and admitted by plaintiff's counsel, that all the hemps of India are the products, not of the cannabis sativa, the ordinary hemp plants of Russia and the United States, but of other and different plants and trees.

The defendant asked the Court to instruct the jury as follows:

First. That the present action of assumpsit cannot be maintained inasmuch as by the 2d section of the General Appropriation

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Act of the 3d of March, 1839, which was in force at the time of the receipt of said moneys by the defendant, he was required to pay, and did pay, such moneys into the Treasury of the United States, and that the Act of Congress of the 26th of February, 1845, cannot operate, nor should it be construed to operate, retroactively, to subject defendant in his individual capacity to such action.

Secondly. That the present action cannot be maintained, inasmuch as defendant acted in precise conformity to the Tariff Act of August 30th, 1842, by which a duty of $40 per ton was laid on all manufactured hemps (except the hemps of India); that as between the defendant as collector and plaintiff as importer, the amount of duties to be paid was conclusively fixed by the said Act of Congress. That the question whether or not the discrimination made by the said Act of August 30th, 1842, between the hemps of India and other unmanufactured hemp, was, in respect to Russian hemp, an infraction of the treaty previously made with Russia, was exclusively a question to be discussed and settled by and between the Government of Russia and the Government of the United States, and that in a private action between the importer and the defendant, it was not competent for the plaintiff to raise, nor for the judicial tribunals to decide, any such question.

Thirdly. That the present action could not be maintained, because the protest of the plaintiff, dated September 1st, 1842, did not refer to the treaty with Russia, nor set forth distinctly and specifically any ground of objection to the payment of the moneys, or any part thereof, charged by the defendant for duties on the hemp in question, nor did it discriminate between the duties so charged on such hemp and the duties charged on the iron included in the entry; but, on the contrary, the said protest referred to all the duties charged in the said entry--those charged on the iron equally with those charged on the hemp, and placed the objection to the payment thereof on the ground that there was no law authorizing their exaction.

Fourthly. That upon the true construction of the Tariff Act of the 30th of August, 1842, all hemps, wherever produced, and

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even though produced in India, which are the products of the cannabis sativa, are charged with a duty of $40 per ton, and the lesser duty of $25 per ton is limited to hemps not the products of cannabis sativa, but of other and different plants or trees; and that therefore the discrimination made in favor of such hemps of India was not an infraction of the Treaty with Russia.

The Court refused to give the instructions so requested by the defendant, but directed the jury, that if they found from the evidence that the hemps of India were, at the time of the passage of the Tariff Act of 1842, generally known in trade and commerce as unmanufactured hemps, the plaintiff was entitled to a verdict for the amount claimed by him; and in accordance with that view the verdict was rendered and judgment given. The defendant took this writ of error.


Mr. Butler, of New York, and Mr. Coffey, of Pennsylvania, for Plaintiff in Error.

These actions of assumpsit cannot be maintained, even were it admitted that the moneys sought to be recovered were illegally exacted by the defendants as duties on the hemp in question.

1. When such moneys were received by the defendants, they were bound by the Act of 3d March, 1839, to pay them into the treasury, and did so pay them; and if liable to any action for the recovery thereof, they were not liable to an action of assumpsit for that purpose. 5 U.S. Statutes at Large, 348, sec. 2; Cary vs. Curtis, (3 Howard, 236).

2. The Act of the 26th of February, 1845, (5 U.S. Statutes at Large, 727,) should not be construed to operate, and cannot operate retroactively, to subject the defendants in their individual capacity to an action to which they were not before liable.

But if it be conceded that the Act of the 26th of February, 1845, (5 Stat., 727,) restores the right of persons who have paid money to collectors for duties under protest, to bring suit against the collectors to test the legality of such payments, which right had been taken away by the Act of 3d March, 1839, (5 Stat., 348, sec. 2,) and the ruling of the Supreme Court in Cary vs. Curtis, (3 How., 236,) a fatal objection to these actions still

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exists. In restoring this right of action, the Act of 1845 subjected it to this condition: 'Nor shall any action be maintained against any collector to recover the amount of duties so paid under protest, unless the said protest was made in writing, and signed by the claimant, at or before the payment of said duties, setting forth distinctly and specifically the grounds of objection to the payment thereof.' It is now said by the defendant in error, in Curtis vs. Fiedler, that this law was not in existence when the duties in that case were paid, and that, therefore, it cannot have a retroactive effect to require the protest to conform to its terms. But the plain and perfect answer to this objection is, that by virtue of the Act of...

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